FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAURIZIO ANTONINETTI, Nos. 08-55867,
Plaintiff-Appellant, Cross- 08-55946,
Appellee, 09-55327,
v. 09-55425
CHIPOTLE MEXICAN GRILL, INC., D.C. No.
3:05-cv-01660-J-
Defendant-Appellee, Cross-
Appellant. WMC
ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
April 7, 2010—Pasadena, California
Filed July 26, 2010
Amended September 22, 2010
Before: Daniel M. Friedman,* Dorothy W. Nelson, and
Stephen Reinhardt, Circuit Judges.
Opinion by Judge Friedman
*Daniel M. Friedman, United States Circuit Judge for the Federal Cir-
cuit, sitting by designation.
15999
ANTONINETTI v. CHIPOTLE MEXICAN GRILL 16003
COUNSEL
Amy B. Vandeveld, San Diego, California, for the plaintiff,
appellant and cross-appellee.
John F. Scalia (argued), Matthew H. Sorensen, Virginia E.
Robinson, Greenberg Traurig L.L.P., McLean, Virginia,
Gregory F. Hurley, Greenberg, Traurig, L.L.P., Irvine, Cali-
fornia, for the defendant, appellee, and cross-appellant.
ORDER
The opinion filed July 26, 2010 is amended as follows. On
page 10643 of the slip opinion, after the sentence, “We must
therefore be ‘particularly cautious’ regarding ‘credibility
determinations that rely on a plaintiff’s past [Disabilities Act]
litigation.’ Id.,” insert the following text:
Such caution is especially appropriate in this case
where, as previously noted, Chipotle stipulated that
“Antoninetti wants to be able to have the ‘Chipotle
experience.’ ” Accordingly, there can be no doubt
that Antoninetti wanted to return to the Chipotle res-
taurants to enjoy the same experience that other non-
disabled Chipotle customers could have. The district
court’s finding thus is inconsistent with and totally
undermined by the parties’ stipulation.
With these amendments, the petition for rehearing is
DENIED. No judge has requested a vote on the petition for
16004 ANTONINETTI v. CHIPOTLE MEXICAN GRILL
rehearing en banc. The petition for rehearing en banc is
DENIED. No further petitions will be entertained.
OPINION
FRIEDMAN, Circuit Judge:
This case presents several issues involving the application
of the Americans with Disabilities Act (“Disabilities Act” or
“Act”) to a wheelchair-bound customer of the well-known
Mexican fast-food restaurants operated by Chipotle Mexican
Grill, Inc. (“Chipotle”). The question on the merits is whether
the actions Chipotle took to accommodate the customer’s dis-
ability satisfied the requirements of the Act and its imple-
menting guidelines. We hold that they did not and accordingly
that Chipotle violated the Act. Another question is whether
the district court erred in denying the customer injunctive
relief. We hold that, under the circumstances, the district court
should grant injunctive relief. We also vacate the district
court’s award of attorney’s fees, which was substantially less
than the customer had sought, and direct reconsideration of
the amount of the fee in light of our ruling on the merits. We
affirm-in-part, reverse-in-part, vacate-in-part, and remand to
the district court for further proceedings.
I
A. The case arises out of visits by the appellant, Maurizio
Antoninetti, to two Chipotle restaurants in California, one in
San Diego and one in Encinitas. Antoninetti is a paraplegic
who uses a wheelchair for mobility. He visited the San Diego
restaurant six times, four times as a customer and twice to
gather evidence for this litigation. He visited the Encinitas
restaurant twice, once as a customer and once in connection
with discovery proceedings in this case.
ANTONINETTI v. CHIPOTLE MEXICAN GRILL 16005
The physical arrangements of the two restaurants were,
insofar as the issues in this case are involved, substantially the
same. Customers walk along a line that is next to a long
counter containing the different foods that are available and
on which the customers’ individual orders are prepared. The
customers’ walking line is separated from this “food prepara-
tion counter” by a separator wall. This wall rises 45 inches
above the floor; the food preparation counter is 34-35 inches
high.
As customers proceed through the line, they see the differ-
ent foods available by looking over the wall, and they tell the
food service employees behind the food preparation counter
what they want. There are many kinds of foods available—
such as salsa, guacamole, cheese, and lettuce—and each
ingredient is described on written menus in the restaurant as
well as on large menu boards above the food preparation
counter. The employees then assemble the customer’s order—
customizing the burrito, taco, or other Mexican food selected
—while the customer watches.
At the end of the food preparation counter is a 4 foot-long
counter containing the cash register and a 2-3 foot-long empty
space. This counter, called the “transaction station,” is 34
inches high, and is where the customer pays for and receives
the order. The wall ends where this counter begins. Beyond
the transaction station is a dining room with fixed seating,
which customers may use after receiving their order.
The serving area of the restaurant is shown in the first pho-
tograph below. The second photograph shows the displayed
food, as seen from above.
16006 ANTONINETTI v. CHIPOTLE MEXICAN GRILL
The parties stipulated that the average eye level of persons
in wheelchairs is 43 to 51 inches above the restaurant floor;
and that, at a distance of 12 inches from the wall, a person at
any height within that average range cannot see the food prep-
aration counter or the food on display there.
According to Chipotle, it “strives to offer a unique experi-
ence consisting of the architecture, décor, and music of its res-
taurants, the aroma of the food, the appearance of a
customer’s entrée, friendly staff, a tradition of excellent cus-
tomer service, [the] ability to customize one’s entrée, and . . .
the taste of the food.” It describes this as the “Chipotle experi-
ence.”
ANTONINETTI v. CHIPOTLE MEXICAN GRILL 16007
Prior to this litigation, Chipotle had an unwritten policy of
accommodating customers in wheelchairs who wanted to see
the available food ingredients or watch the preparation of
their food. When customers in wheelchairs so indicated,
employees were required to show them samples of the avail-
able foods in serving spoons, held in tongs or in plastic por-
tion cups, or to assemble the food either at the “transaction
station” or at a table in the restaurant’s seating area.
In February 2007, because of this litigation, Chipotle
adopted its written “Customers With Disabilities Policy” (the
“written policy”). This policy provides that “the restaurant
staff will offer . . . [a] customer with a disability (for example,
a visual or mobility impairment)”
a suitable accommodation based on the individual
circumstances, and will be responsive to the custom-
er’s requests. Depending on the circumstances, our
crew member or manager may ask the customer if
we can accommodate them during their visit. Exam-
ples of some of the ways we accommodate individu-
als include:
1. Samples of the food can be placed in
soufflé cups and shown or handed to
the customer.
2. Some customers may prefer an oppor-
tunity to see or even sample the food at
a table.
3. Customers may simply wish to have
the food or food preparation process
described to them.
4. Or combinations of the above accom-
modations with any other reasonable
16008 ANTONINETTI v. CHIPOTLE MEXICAN GRILL
accommodation requested or appropri-
ate for the individual.
Antoninetti has not visited either restaurant since this writ-
ten policy was implemented. The parties have stipulated,
however, that Antoninetti still wishes to enjoy the “Chipotle
experience”—seeing all the ingredients on display and watch-
ing his burrito assembled and rolled—quickly and without
inconveniencing employees or other customers.
B. Following his experiences as a customer in the two
restaurants, Antoninetti filed the present suit against Chipotle
in the United States District Court for the Southern District of
California. He alleged that Chipotle’s treatment of
wheelchair-bound customers violates the Disabilities Act. He
sought injunctive relief and damages under a California stat-
ute that authorizes damages for violations of the federal Dis-
abilities Act.
After granting partial summary judgment and holding a
bench trial, the district court:
1. Held that Chipotle’s earlier unwritten policy for
accommodating customers in wheelchairs violated the Dis-
abilities Act, but that its current “written policy” complied
with the Act;
2. Denied injunctive relief;
3. Held that Antoninetti was a prevailing party in the liti-
gation, and awarded him attorney’s fees of
$136,537.83—considerably less than he had sought; and
4. Awarded him $5,000 under the California damages
statute (discussed in part V below).
II
[1] Title III of the Disabilities Act requires that “public
accommodations” built for first occupancy after January 26,
ANTONINETTI v. CHIPOTLE MEXICAN GRILL 16009
1993, be “readily accessible to and usable by individuals with
disabilities.” See 42 U.S.C. § 12183(a)(1). To satisfy this stan-
dard, “[n]ew construction and alterations . . . [must] comply
with the standards for accessible design” promulgated by the
Attorney General of the United States. See 28 C.F.R.
36.406(a). The Attorney General has issued detailed, primar-
ily architectural, standards—known as the Guidelines—that
govern the applicability of the Act to a variety of public
accommodations. Failure to comply with the Guidelines con-
stitutes prohibited “discrimination for the purposes of” the
Disabilities Act. See 42 U.S.C. § 12183(a). The parties do not
dispute that the two Chipotle restaurants are places of public
accommodation, built after January 26, 1993, and therefore
must comply with the Guidelines. Not surprisingly, the parties
disagree about which Guideline governs this case.
[2] A. Antoninetti argues that Guideline § 4.33.3 applies
to Chipotle’s food preparation counters. That Guideline pro-
vides, in pertinent part:
Placement of Wheelchair Locations. Wheelchair
areas shall be an integral part of any fixed seating
plan and shall be provided so as to provide people
with physical disabilities a choice of admission
prices and lines of sight comparable to those for
members of the general public. They shall adjoin an
accessible route that also serves as a means of egress
in case of emergency. At least one companion fixed
seat shall be provided next to each wheelchair seat-
ing area. When the seating capacity exceeds 300,
wheelchair spaces shall be provided in more than
one location. Readily removable seats may be
installed in wheelchair spaces when the spaces are
not required to accommodate wheelchair users.
28 C.F.R. § 36, App. A, § 4.33.3. Antoninetti argues that
because Guideline § 4.33.3 guarantees “lines of sight compa-
rable to those for members of the general public,” the wall
16010 ANTONINETTI v. CHIPOTLE MEXICAN GRILL
violates that Guideline because it prevents customers in
wheelchairs from seeing the food preparation counter. The
district court granted summary judgment to Chipotle on this
contention, holding that the plain language of this Guideline
does not cover Chipotle’s food preparation counter. We agree.
[3] The basic flaw in Antoninetti’s contention is that
Guideline § 4.33.3 deals with the “[p]lacement of
[w]heelchair [l]ocations” as “an integral part of any fixed
seating plan.” Id. The food service area of the two restaurants
is not “part of any fixed seating plan,” because there are no
seats there, fixed or mobile, nor any “wheelchair locations”
that have been “place[d].” The customers move through the
service line, past the food preparation station, and on to the
cash register. Only after doing so do they proceed to the seat-
ing area in the restaurant.
Furthermore, Guideline § 4.33.3 does not govern here
because it addresses a different situation, namely the accessi-
bility for the handicapped of fixed-seating structures in which
people view performances or events, such as theatres, concert
halls, athletic stadia, and the like. See, e.g., Paralyzed Veter-
ans of Am. v. D.C. Arena L.P., 117 F.3d 579, 583 (D.C. Cir.
1997). Guideline § 4.33.3 requires “admission prices and lines
of sight comparable to those for members of the general pub-
lic.” 28 C.F.R. § 36, App. A, § 4.33.3. It also requires that
“[a]t least one companion fixed seat shall be provided next to
each wheelchair seating area” and that “[w]hen the seating
capacity exceeds 300, wheelchair spaces shall be provided in
more than one location.” Id.
B. Chipotle argues, and the district court held, that Guide-
line § 7.2 provides the governing standard here. That Guide-
line, titled “Sales and Service Counters, Teller Windows,
Information Counters,” (in § 7.2(2)) provides:
At ticketing counters, teller stations in a bank, reg-
istration counters in hotels and motels, box office
ANTONINETTI v. CHIPOTLE MEXICAN GRILL 16011
ticket counters, and other counters that may not have
a cash register but at which goods or services are
sold or distributed, either:
(i) a portion of the main counter which is a
minimum of 36 [inches] . . . in length shall
be provided with a maximum height of 36
[inches] . . . or
(ii) an auxiliary counter with a maximum
height of 36 [inches] . . . in close proximity
to the main counter shall be provided; or
(iii) equivalent facilitation shall be provided
(e.g., at a hotel registration counter, equiva-
lent facilitation might consist of: (1) provi-
sion of a folding shelf attached to the main
counter on which an individual with dis-
abilities can write, and (2) use of the space
on the side of the counter or at the con-
cierge desk, for handing materials back and
forth).
28 C.F.R. § 36, App. A, § 7.2(2).
We agree with the district court that this provision applies.
The food service areas of the two restaurants are “counters”
and the preparation of the customers’ food orders is the sale
and distribution of “goods or services.” The “goods” are the
food itself, and the “services” are the preparation of the meal
the customer orders.
[4] C. The next question is whether the two restaurants
comply with that Guideline, which includes the requirement
that “a portion of the main counter” have “a maximum
height” of 36 inches. Chipotle contends that this requirement
is satisfied because the food preparation counter adjoins the
transaction station, which is 34 inches high, and therefore that
16012 ANTONINETTI v. CHIPOTLE MEXICAN GRILL
either a “portion of the main counter” or an “auxiliary count-
er” is below the 36 inch maximum height. The district court
properly rejected this argument.
[5] Under the Guidelines, the food preparation counter and
the transaction station are different entities, even though they
are next to each other and adjoined. As the district court
stated, these counters “serve different functions.” The food
preparation counter is where the different food products are
located, the customers view, select, and customize the burrito,
taco, or other Mexican food they select, and the food service
employees prepare the order. The transaction station, which
includes the cash register, is where customers pay for and col-
lect the food they have ordered. Because the portion of the
counter that Chipotle relies on as being less than 36 inches
high is neither a “portion of the main” food preparation
counter nor an “auxiliary” food preparation counter, the
requirements of either Guideline §§ 7.2(2)(i) or 7.2(2)(ii) are
not met. In these circumstances, the wall conceals the food
preparation counter from wheelchair-bound customers and
thus prevents those customers from having the experience of
non-disabled customers of fully participating in the selection
and preparation of their order at the food preparation counter.
The wall subjects them to a disadvantage that non-disabled
customers do not suffer.
[6] D. Guideline 7.2(2) provides that, if a counter does
not meet the height requirements set forth in § 7.2(2)(i) or
§ 7.2(2)(ii):
[E]quivalent facilitation shall be provided: (e.g., at a
hotel registration counter, equivalent facilitation
might consist of: (1) provision of a folding shelf
attached to the main counter on which an individual
with disabilities can write, and (2) use of the space
on the side of the counter or at the concierge desk,
for handing materials back and forth).
ANTONINETTI v. CHIPOTLE MEXICAN GRILL 16013
28 C.F.R. § 36, App. A, § 7.2(2)(iii). The Guidelines define
“[e]quivalent facilitation” as:
Departures from particular technical and scoping
requirements . . . by the use of other designs and
technologies . . . where the alternative designs and
technologies used will provide substantially equiva-
lent or greater access to and usability of the facility.
Id. § 36, App. A, § 2.2.
The district court held that Chipotle’s written policy consti-
tuted “equivalent facilitation,” but that its prior unwritten pol-
icy did not, because the written policy “imposes two new
requirements,” namely:
(1) . . . [I]t is the responsibility of the manager on
duty at the [r]estaurant, rather than his or her crew
members, to carry out the policy . . . and (2) . . .
[T]he manager on duty must affirmatively inform the
customer with a disability of the various accommo-
dations options without waiting for the customer to
request them through oral communications or non-
oral cues.
[7] Initially, the parties dispute whether any “policy” may
constitute “equivalent facilitation.” The issue, however, is not
the form in which a policy is adopted and applied, but
whether the substance of the policy satisfies the Guideline
requirements of “equivalent facilitation.” The two “new
requirements” of the written policy that the district court
relied on to show “equivalent facilitation” are unavailing
because they relate only to the manner of applying that policy,
not its substance.
[8] As noted, the presence of the wall in the two restau-
rants significantly reduced Antoninetti’s ability to enjoy the
“Chipotle experience.” From his wheelchair, he could not see
16014 ANTONINETTI v. CHIPOTLE MEXICAN GRILL
and evaluate the various available foods and decide which or
how much of each he wanted. He also could not watch the
food service employee combine those ingredients to form his
order. The substitutes that Chipotle provided—showing him
samples of the individual foods in serving spoons, held in
tongs or in plastic cups, or assembling the food at the “trans-
action station” or at a table in the seating area—do not consti-
tute “equivalent facilitation” because they do not involve “use
of other designs and technologies” or “provide [him with]
substantially equivalent or greater access to and usability of
the facility.” They merely provide a substitute experience that
lacks the customer’s personal participation in the selection
and preparation of the food that the full “Chipotle experience”
furnishes.
In light of this conclusion, we need not decide whether, as
Antoninetti and the amici argue, “equivalent facilitation”
requires that the facilitating “alternative designs and tech-
niques” be architectural or physical, and cannot be a particular
kind of service or policy.
[9] In sum, Chipotle’s treatment of Antoninetti during his
visits as a customer of the two restaurants violated the Dis-
abilities Act, because it did not comply with the Guidelines.
III
[10] The enforcement provisions of the Disabilities Act, 42
U.S.C. § 12188, provide that the “remedy and procedures” of
the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(a), are
available “to any person who is being subjected to discrimina-
tion on the basis of disability in violation of this subchapter.”
42 U.S.C. § 12188(a)(1). The referenced provision of the
Civil Rights Act states that a “person aggrieved” by a viola-
tion of that Act may file “a civil action for preventive relief,
including an application for a permanent or temporary injunc-
tion.” 42 U.S.C. § 2000a-3(a). The Disabilities Act provides
ANTONINETTI v. CHIPOTLE MEXICAN GRILL 16015
that, in cases of discrimination in places of public accommo-
dation,
injunctive relief shall include an order to alter facili-
ties to make such facilities readily accessible to and
usable by individuals with disabilities to the extent
required by this subchapter. Where appropriate,
injunctive relief shall also include requiring the pro-
vision of an auxiliary aid or service, modification of
a policy, or provision of alternative methods, to the
extent required by this subchapter.
42 U.S.C. § 12188(a)(2).
Injunctive relief is the sole remedy available to private par-
ties under the Disabilities Act; it does not authorize a claim
for money damages. See, e.g., Wander v. Kaus, 304 F.3d 856,
858 (9th Cir. 2002).
Antoninetti sought an injunction requiring Chipotle to
lower the wall that prevented wheelchair-bound customers
from observing the food preparation counters in the two res-
taurants.
The district court denied an injunction. It applied the tradi-
tional equity test: injunctive relief is appropriate when a party
demonstrates “(1) that it has suffered an irreparable injury; (2)
that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering
the balance of hardships between the plaintiff and defendant,
a remedy in equity is warranted; and (4) that the public inter-
est would not be disserved by a permanent injunction.” See
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006).
The court found that Antoninetti had failed to show irrepa-
rable injury because he had not revisited either restaurant after
Chipotle adopted its written policy and because his “purported
16016 ANTONINETTI v. CHIPOTLE MEXICAN GRILL
desire to return to the [r]estaurants is neither concrete nor sin-
cere or supported by the facts.” It also stated that Antoninet-
ti’s “history as a plaintiff in accessibility litigation supports
this Court’s finding that his purported desire to return to the
[r]estaurants is not sincere. Since immigrating to the United
States in 1991, Plaintiff has sued over twenty business entities
for alleged accessibility violations, and, in all (but one) of
those cases, he never returned to the establishment he sued
after settling the case and obtaining a cash payment.”
Courts must tread carefully before construing a Disability
Act plaintiff’s history of litigation against him. As we have
noted more than once, “[f]or the [Disabilities Act] to yield its
promise of equal access for the disabled, it may indeed be
necessary and desirable for committed individuals to bring
serial litigation advancing the time when public accommoda-
tions will be compliant with the [Disabilities Act].” D’Lil v.
Best W. Encina Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir.
2008) (quoting Molski v. Evergreen Dynasty Corp., 500 F.3d
1047, 1062 (9th Cir. 2007) (citing Samuel R. Bagnestos, The
Perversity of Limited Civil Rights Remedies: The Case of
“Abusive” ADA Litigation, 54 UCLA L. Rev. 1, 5 (2006))).
We must therefore be “particularly cautious” regarding “cred-
ibility determinations that rely on a plaintiff’s past [Disabili-
ties Act] litigation.” Id. Such caution is especially appropriate
in this case where, as previously noted, Chipotle stipulated
that “Antoninetti wants to be able to have the ‘Chipotle expe-
rience.’ ” Accordingly, there can be no doubt that Antoninetti
wanted to return to the Chipotle restaurants to enjoy the same
experience that other non-disabled Chipotle customers could
have. The district court’s finding thus is inconsistent with and
totally undermined by the parties’ stipulation.
[11] In any event, in its present posture, this is a quite dif-
ferent case from the one the district court decided. We have
held that the wall in the two restaurants violates the Disabili-
ties Act, and that neither Chipotle’s new or old policies ame-
liorated the violation. Considering all the circumstances,
ANTONINETTI v. CHIPOTLE MEXICAN GRILL 16017
including particularly the statutory violations we have found
and the fact that an injunction is the only relief available to
a private party under the Act, it would be an abuse of discre-
tion for the district court now to deny injunctive relief.
[12] Accordingly, we shall reverse the district court’s
denial of such relief and remand the case with instructions to
that court to enter an appropriate injunction. The precise con-
tours of such an injunction are for the district court to deter-
mine in the first instance.
In view of that conclusion and disposition, we need not
address the question, which the parties vigorously dispute but
which the district court did not decide, whether the Disabili-
ties Act authorizes a district court to deny injunctive relief
after finding a violation of the Act. This court has refrained
from deciding “whether the [Disabilities Act] forecloses the
possibility that a court might exercise its equitable discretion
in fashioning relief for violations” of the Act. See Long v.
Coast Resorts, Inc., 267 F.3d 918, 923 (9th Cir. 2001). It has
stated, however, that “[t]he standard requirements for equita-
ble relief need not be satisfied when an injunction is sought
to prevent the violation of a federal statute which specifically
provides for injunctive relief.” Silver Stage Partners, Ltd. v.
City of Desert Hot Springs, 251 F.3d 814, 827 (9th Cir. 2001)
(quoting Burlington N. R.R. Co. v. Dep’t of Revenue, 934 F.2d
1064, 1074 (9th Cir. 1991); see also Joshua A. v. Rocklin Uni-
fied Sch. Dist., 559 F.3d 1036, 1040 (9th Cir. 2009) (noting
that injunctive relief under the “stay put” provision of the
Individuals with Disabilities Education Act “requires no spe-
cific showing on the part of the moving party, and no balanc-
ing of equities by the court”).
IV
[13] Under the Disabilities Act, “the court . . . in its discre-
tion, may allow the prevailing party . . . a reasonable attor-
ney’s fee, including litigation expenses, and costs.” 42 U.S.C.
16018 ANTONINETTI v. CHIPOTLE MEXICAN GRILL
§ 12205. As the Supreme Court recently reiterated, under fed-
eral fee-shifting statutes “the lodestar approach” is “the guid-
ing light” in determining a “reasonable” fee. See Perdue v.
Kenny A., 599 U.S. ___, ___, 130 S. Ct. 1662, 1671-73 (2010)
(internal quotation marks omitted). Under that method, the
court first determines the appropriate hourly rate for the work
performed, and then multiplies that amount by the number of
hours properly expended in doing the work. Id. Although “in
extraordinary circumstances” the amount produced by the
lodestar calculation may be increased, “there is a strong pre-
sumption that the lodestar is sufficient.” Id. at 1669.
In its two opinions determining a reasonable attorney’s fee
in this case, the district court apparently applied the lodestar
method. Neither order explicitly stated or explained the
hourly rate that the court used. Antoninetti’s lawyer stated at
the hearing on attorney’s fees that she was “requesting” an
hourly rate of $375, which Chipotle did not challenge; the dis-
trict court apparently used this figure in its calculations.
The district court held that the fee awarded should reflect
the “limited success” Antoninetti achieved. The court pointed
out that he had prevailed on only two of his claims: that Chi-
potle’s earlier policy violated the Act, and that he was entitled
to damages under the California statute. The district court
ruled that Antoninetti’s “billing records make it impossible
for the Court to identify specific hours associated with unsuc-
cessful claims” and that it was “appropriate to simply reduce
the award by a designated amount.”
Antoninetti sought attorney’s fees of $546,151.33. Because
of his limited success, the court “F[OU]ND[ ] that plaintiff is
entitled to one-quarter of the attorneys’ fees that he has
requested,” and awarded him $136,537.83.
The results of this litigation are now quite different than
they were when the district court made that award. Under our
decision today, Antoninetti has prevailed on the two major
ANTONINETTI v. CHIPOTLE MEXICAN GRILL 16019
issues that he lost before the district court. We have held that
Chipotle’s treatment of him in the two restaurants violated the
Disabilities Act, and that the district court must provide
injunctive relief.
[14] In light of this changed outcome, the district court
should reexamine and reconsider its attorney’s fee award. We
express no view on what would be a reasonable fee in light
of the changed circumstances. That determination is one that
initially is for the informed discretion of the district court.
V
The California Disabled Persons Act (“California Act”)
provides that violation of an individual’s rights under the Dis-
abilities Act also constitutes a violation of the California Act.
Cal. Civ. Code § 54(c). One who commits such violation is
“liable for each offense for the actual damages and any
amount as may be determined by a jury, or the court sitting
without a jury, up to a maximum of three times the amount
of actual damages but in no case less than one thousand dol-
lars ($1,000), and attorney’s fees as may be determined by the
court in addition thereto.” Cal. Civ. Code § 54.3.
[15] In order “to maintain an action for damages pursuant
to [the California Act] an individual must . . . establish[ ] that
he or she was denied equal access on a particular occasion.”
Donald v. Café Royale, Inc., 218 Cal. App. 3d 168, 183 (Cal.
Ct. App. 1990) (emphasis omitted). Antoninetti therefore
must show that “he actually presented himself to the restau-
rant on a particular occasion, as any other customer would do,
with the intent of being . . . served and to purchase food . . .
in the manner offered . . . . [and] actually encountered access
to . . . the restaurant that was not full and equal.” Reycraft v.
Lee, 177 Cal. App. 4th 1211, 1226 (Cal. Ct. App. 2009).
Antoninetti made eight visits to the two restaurants, five as
a customer and three in connection with his lawsuit. The dis-
16020 ANTONINETTI v. CHIPOTLE MEXICAN GRILL
trict court awarded him $1,000 damages under the California
Act for each of his five visits as a customer, but did not make
any award for his three litigation-related visits. The record
indicates that these damages awards were based on Chipotle’s
violations of the Guidelines in the restaurants’ parking lots
(an issue not here disputed), not on the violations of the Act
in the food service areas that we have found. Chipotle has
since rectified the parking lot violations. In his notice of
appeal, Antoninetti challenges the district court’s judgment
“with respect to the denial of additional damages . . . based
upon violations of the Americans with Disabilities Act by
Chipotle . . . . [but] does not appeal the amount of damages
already awarded.”
[16] The violations of the Disabilities Act we have found
are that, because of the wall, Antoninetti was unable to see the
food arranged on the food counter or the preparation of his
order, as non-wheelchair-bound customers could do, and thus
was unable to enjoy the “Chipotle experience.” Those viola-
tions necessarily occurred only when he visited the restaurants
to purchase food and sat in line in his wheelchair. On those
visits when he was not seeking to purchase food or to have the
“Chipotle experience,” Antoninetti cannot recover money
damages under the California Act.
It is unclear whether Antoninetti is challenging the district
court’s failure to award damages for the five food service area
violations we have found (in addition to the parking lot viola-
tions), or, if so, whether he has properly preserved that issue.
In his notice of appeal, he challenged the district court’s judg-
ment “with respect to the denial of additional damages”—an
ambiguous phrase that could cover only the litigation-related
visits, or also could cover the food service area violations.
The record does not show whether Antoninetti purchased food
on any of his three litigation-related visits, although he stated
in his opening brief: “Nor was any evidence offered at any
time that Antoninetti’s purchases during these [litigation-
related] visits were made in bad faith or with fraud or deceit.”
ANTONINETTI v. CHIPOTLE MEXICAN GRILL 16021
Moreover, the district court has not considered the amount of
additional damages, if any, that should be awarded for the
violations not related to parking.
[17] We vacate the damages award and remand for further
proceedings on this issue.
CONCLUSION
The judgment of the district court is affirmed insofar as it
ruled that Chipotle’s unwritten earlier policy violated the Dis-
abilities Act. The portions of the judgment determining that
Chipotle’s written policy did not violate the Act and that
Antoninetti was not entitled to an injunction are reversed, and
the case is remanded to the district court to enter a judgment
that Chipotle violated the Disabilities Act and to issue appro-
priate injunctive relief. The portions of the judgment that
awarded an attorney’s fee of $136,537.83 and awarded dam-
ages of $5,000 under the California Act are vacated and the
case is remanded for the district court to reconsider those
issues.
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART AND REMANDED.